R. K. ABICHANDANI, J.

( 1 ) COMMON questions arose in these petitions and therefore, they have been heard together and are bring disposed of by this common order. In Special civil Application No. 6650 of 1995, the petitioner who was appointed as a Junior Clerk on compassionate ground seeks to challenge the order of his termination dated 29. 7. 1995 on the ground that he is entitled to be continued in service until his request for grace chances for passing the Post Training Examination under the Gujarat Non-secretariate clerks and Clerical Typists (Training and Examination) Rules, 1970, is considered. According to the respondent authorities, the said petitioner had failed to pass the examination in the prescribed chances.

( 2 ) IN Special Civil Application No. 6570 of 1995, the petitioner who was appointed as a Junior Clerk on compassionate ground has also contended that his services cannot be terminated till all the additional chances were exhausted by the petitioner. The case of the respondents is that this petitioner being a Scheduled Tribe candidate, was required to pass the examination within four chances under the Rules. It is stated the petitioner had availed of all the four chances and failed and therefore, he was not eligible to continue in service.

( 3 ) IN Special Civil Application No. 6607/95 also the petitioner was appointed on compassionate ground as Junior Clerk and was a Scheduled Tribe candidate, who could not clear the examination in four chances and apprehends that his services are likely to be terminated and therefore, he should be allowed to be continued in service until all additional chances are exhausted.

( 4 ) IT was contended by the learned Counsel for the petitioners that Rule 8 (2) of the said Rules provides that the service of a candidate who is appointed on ad hoc basis will be terminated only if he does not pass the Post Training Examination as required under the Rules. He therefore, submitted that the said Rule did not provide that the service should be terminated as soon as the specified three chances were exhausted. It was submitted that the additional chances under the third proviso to Rule 6 were also available to the candidate who had failed in specified chances and on clearing the examination in additional chance, it can be said that the candidate has passed the examination as required under the Rules. It was submitted that in view of this plausible interpretation of Rule 8 (2), a Division Bench had in the past thought it fit to refer the matter to a Full Bench. That was done in Special Civil Application No. 656 of 1987. A division Bench consisting of Honble the Chief Justice Mr. P. R. Gokulakrishnan and honble Mr. Justice R. J. Shah, by their order dated 3. 12. 1988, in which after referring to the Division Bench judgment in Special Civil Application No. 3754/86 decided by honble Mr. Justice S. B. Majumdar and Honble Mr. Justice A. P. Ravani (as Their lordships then were) on 8th July, 1987, observed that the third proviso to Rule 6 was required to be considered and therefore, the matter was being referred to Full Bench. It, however, appears that the Full Bench did not decide that question and disposed of the petition without expressing any opinion regarding the correctness of the judgment as stated by the learned Counsel appearing for both the sides. It was submitted that Honble mr. Justice M. S. Parikh had passed a detailed interim order on May 2, 1995 in Special civil Application No. 1904 of 1995 in which it is mentioned that the Full Bench by its order dated 26th July 1993 had said that it was not necessary to decide the question as it did not survive on account of the petitioner having passed the examination and having been regularly accommodated in the service. Referring to various other decisions of this court on the point. His Lordship came to the conclusion that interim relief should be granted to enable the employee to be taken back and continued in service till decision was taken

Click Here to Read the rest of this document